President Bush's New Iraq Commission Won't Be Investigating the Key WMD Issue:How the Executive Order Fatally Limits Their Agenda

George W. Bush has been nothing short of a magician when it comes to making unpleasant matters confronting his presidency disappear. And on February 6, Bush once again did a bit of conjuring.

That day, he announced that he was creating an "independent commission, chaired by Governor and former [Virginia] Senator Chuck Robb, and Judge Laurence Silberman, to look at American intelligence capabilities, especially our intelligence about weapons of mass destruction." In doing so, Bush sought to head off what potentially could be an aggressive Congressional inquiry, or a Congressionally created independent commission, on the weapons of mass destruction (WMD) justification for the Iraq war.

Such an inquiry would doubtless focus on a set of questions that is bound to make Bush very uncomfortable: the central issue of whether Bush, and his Vice President Dick Cheney, accurately represented the pre-Iraq war intelligence (or lack thereof) when claiming that Saddam had WMD and that Iraqi had ties with al Qeada.

Bush's magic appears to have worked again. His commission is a sham, and simply ignores the very reason he was pressured to create it. Yet it seems no one is complaining -- or at least, no one who could force the commencement of an legitimate investigation.

Reacting to David Kay's Testimony: "We Got It Wrong"

Bush established this commission to quiet the public reaction to Congressional testimony by his weapons inspector David Kay. Kay reported his failure to find weapons of mass destruction in Iraq, and flatly asserted that we got it wrong, and there were no stockpiles of WMD in Iraq. He also made clear that he does not think they will be found even given more time to search. Kay also recommended to Congress that an independent investigation be undertaken of this intelligence failure.

To get public attention off of Kay's report (and resignation), Bush has used his political skills to try to silence his former weapons inspector, and to preempt Kay's knowledge and suggestions by making it yesterday's news.

First, Bush invited Kay to the White House for lunch. Meanwhile, his aides advised the news media that the president was considering what he had earlier rejected -- an investigation of the intelligence failure. Using the "wow" of a private lunch with the president appears to have been unsuccessful in wooing Kay, however. The Los Angeles Times spoke with Kay after his lunch with the president. Kay told the Times that he and the president did not get into a discussion about the investigation. And when the Times asked Kay what he thought was an appropriate way to investigate these problems, it reported that "Kay said that his 'model' for the inquiry would be the special commission named by President Reagan to investigate the January 1986 explosion of the space shuttle Challenger shortly after it was launched."

The Times further noted that White House aides were suggesting that the intelligence probe would be patterned, instead, after the Warren Commission (the panel created by President Lyndon Johnson to investigate the 1963 assassination of President Kennedy).

The Country Deserves an Investigation, Not a Cover-up

Neither of these suggestion is what is truly needed here. Indeed, both the Challenger and Warren inquiries are excellent models not for how to conduct an investigation, rather for how to conduct a cover-up.

The Warren Commission's work and findings were so shrouded in secrecy that they have haunted history while creating a cottage industry of JFK assassination conspiracy theories.

The Challenger inquiry was so flawed, that following the recent Columbia disaster, NASA's administrator went out of his way to not repeat those mistakes. ''It is a hard, hard legacy of the lessons learned from the post-Challenger experience. We've learned a lot from that,'' Mr. O'Keefe was reported by the New York Times as saying, "mindful that the cover-up in the Challenger investigation ended many careers and soiled the agency's reputation."

In the end, however, Bush modeled his inquiry on a precedent with which Dick Cheney was most familiar. But first, a look at what he actually has initiated.

The Bush Commission's Stated Agenda Has Little, If Anything, to Do with the Missing WMDs

With a few strokes of his pen, Bush had an Executive Order that he can now use to remove the issue of his administration's distorting Saddam's pre-war WMD intelligence from the 2004 campaign. "The commission is studying the matter," they will say, when asked about the missing WMD in Iraq, and Saddam's ties to al Qeada.

Everyone understands that Bush has removed the issue from the 2004 campaign by not requiring his commission to report until March 31, 2005 -- long after the election. But in fact, he has done much more than this to assure that this commission causes him no political problems. One need only look at the president's statement announcing the commission to understand that Bush is not playing it straight.

For example, he succinctly stated the inquiry's purpose (when reading his prepared statement) as follows: "The commission I have appointed today will examine intelligence on weapons of mass destruction and related 21st century threats and issue specific recommendations to ensure our capabilities are strong. The commission will compare what the Iraq Survey Group learns with the information we had prior to our Operation Iraqi Freedom. It will review our intelligence on weapons programs in countries such as North Korea and Iran. It will examine our intelligence on the threats posed by Libya and Afghanistan before recent changes in those countries."

What does any of that have to do with whether or not the Bush administration misused, falsely reported, or concocted intelligence to take the nation to war? Nothing.

Bush's Executive Order Establishing the Commission.

What about the Executive Order itself? It shows either extreme haste (and carelessness) in drafting, or a blatant effort to pull the wool over the nation's eyes. The Commission's "mission" is set forth in three sections. The first of these contains the Commission's core assignment.

That assignment which is spelled out in three rather convoluted sentences, which I have summarized:

The first sentence states that the Commission's general purpose and mission is "advising the President" about "the most effective counter-proliferation capabilities" and "response to the September 11, 2001, terrorist attacks and the ongoing threat of terrorist activity." In short, this commission is not reporting to Congress, or the American people; rather, it is only reporting to the president.

The second sentence instructs the Commission to "assess whether the Intelligence Community" has the necessary wherewithal to support the government's "efforts to respond to" the "proliferation of Weapons of Mass Destruction" in the future. A later section defines the "Intelligence Community" borrowing the definition set forth in the National Security Act.

It should be noted that this definition appears to exclude the Office of Special Planning (OSP). The OSP once resided in the Defense Department. It has been widely reported as a rogue intelligence group, which operated outside the Intelligence Community and provided the key information relied on by Bush and Cheney. Similarly, it excludes the Office of the Vice President, which is widely believed the source of much of the dubious intelligence. Plainly, the OSP and Cheney's operation should be at the top of the Commission's list of which agencies to investigate. Instead, it seems they have dropped off that list entirely.

The third mission sentence calls for the Commission to "examine the capabilities and challenges" of the Intelligence Community in collecting, processing, analyzing, producing, and disseminating WMD related information.

Note, this third section looks to the future, not the past. And while an effort to improve intelligence-gathering for the future is laudable, it is not the same as taking an honest look at intelligence deficits of the past, and why they occurred.

In short, nothing in the first section of the Commission's mission description looks to the very problem David Kay said should be examined. Kay, who gives the administration the benefit of the doubt, says "The charges are out there, and if there was misuse or distortion [of the Iraq intelligence], we need to know it."

The Commission Is Likely to Be Delayed Completing Its Task

Bush's Executive Order only pretends to look at the issue of pre-war Iraqi WMD intelligence. In fact, it does not look at what is really the issue: the use of that intelligence by policy makers. The questions of what the intelligence said, and how it was used -- specifically, was it exploited or distorted? -- are quite separate. Bush's Commission will answer only the first question. And it may not be able to answer even that in a prompt fashion.

Bush has directed the panel to "specifically examine the Intelligence Community's intelligence prior to [the Iraqi war] and compare it with the findings of the Iraq Survey Group [ISG]and other related agencies." That is it.

But this assignment virtually guarantees delay. The ISG has not yet completed its work. And it may not complete that work before the commission's report is due in March, 2005.

After all, the ISG appears to have no time limit on its own work: When David Kay stepped down as the top CIA coordinator of the Iraq Survey Group, he was replaced by Charles Duelfer, who said, "The goal here is to put together the most complete, credible and openly demonstrable picture of what Iraq had, what their programs were and where they were headed . . . . That's not going to be an easy task. The country has gone through a war. Documents, facilities, people have been scattered. But I think where the most sensitive judgment call will be called for is when do you think you have pursued all possible avenues to the extent that you can." In sum, Duelfer is not intending the rush the ISG; he is seeking a comprehensive report from them.

Accordingly, tying the Commission's report to the Survey Group's results means they have no control over when they can issue a comparative report, and a partial report is meaningless.

Bush's WMD Commission Is Reminiscent Of The Rockefeller Commission

Bush's Executive Order's with its limited scope invites a comparison not to the Warren Commission or Challenger inquiry, rather with the Rockefeller Commission. This advisory panel, named after the Vice President Nelson Rockefeller who chaired it, was very familiar to the current Vice President, which suggests Cheney's hidden hand in this inquiry.

In December 1974, during the Ford presidency, a four-column headline-grabbing story by Seymour Hersh appeared in the New York Times. The headline was as follows: "Huge CIA Operation Reported In U.S. Against Antiwar Forces, Other Dissidents In Nixon Years." Hersh laid out a "massive, illegal domestic intelligence operation" by the CIA, which by its charter was restricted to foreign intelligence gathering.

Dick Cheney was well aware of the story. At the time, he was deputy chief of staff under Donald Rumsfeld at Gerald Ford's White House (and traveling with the President during the holiday). Cheney can't have forgotten the lessons that were garnered from President Ford's response, given his role in crafting it.

The story broke after Sy Hersh picked up a few trinkets from the CIA's later infamous "family jewels." In 1973, as Watergate was falling apart, CIA Director James Schlesinger had sent a memorandum throughout the agency requesting information about past "questionable activities." The responses were summarized in a seven-hundred page document that became known as the CIA's family jewels. More accurately, it was a time bomb.

President Ford's initial response to the Hersh story was to do nothing. But in Washington, Ford's CIA Director, William Colby, later wrote, Hersh's story "triggered a firestorm." Colby told Ford it was likely to get worse, for amongst the "jewels" were detailed reports of the assassination plots against foreign leaders (Castro in Cuba, Lumumba in the Congo, and Trujillo in the Dominican Republic).

Ford's staff recommended that the way to deal this information buried and away from Congress was for Ford to initiate his own investigation, and preempt the issue. In 1967, Lyndon Johnson had similarly used a commission to head off a Congressional investigation of the CIA. (Later, Ronald Reagan would, again quite similarly, use the Tower Commission to stall the Congress from looking into the Iran-Contra matter.)

Indeed, this stalling tactic, in fact, is as old as the Republic. George Washington used a presidential commission to deal with the Whiskey Rebellion.

Cheney's Advice to Ford Then, May Also Be His Advice to Bush Now

On December 26, 1974, Dick Cheney drafted a memo to President Ford in which he cautioned that when the commission was selected, it was important that it not appear to be "a 'kept' body designed to whitewash the problem."

On December 27, 1974, in another memo to President Ford, Cheney spelled out the goals for a proposed commission: it would prevent Ford from being put on the defensive; it could minimize damage to the CIA by heading off the "Congressional efforts to further encroach on the executive branch" (a refrain that Cheney repeats to this day three decades later); and it would show Ford's leadership.

Fortunately, the Rockefeller Commission did not prove to play quite the role Cheney had scripted for it -- but that was not for lack of trying

Kenneth Kitts, a political scientist who focuses on relationships between presidential power and national security decisionmaking, reported on Ford's "commission politics" in the Presidential Studies Quarterly (Fall, 1996). Kitts notes that Ford's Executive Order creating the commission limited the scope of the inquiry (seeking to prevent examination of the assassination plots). Cheney may have taken a page from the Ford Administration if he helped to draft Bush's very limited Iraq/WMD Executive Order this year.

Kitts also notes that while the members selected for the panel appeared "to be quite conventional," in truth, the commission had been stacked. Ford had personally called each appointee in order to brace each of them -- stressing "the need to protect the [CIA's] ability to operate" and advising them about "any public positions on CIA activities that might be troublesome."

Kitts also found that the Ford White House controlled the Commission's staff selection. Moreover, once the Commission was in operation, "[b]ehind-the-scenes maneuvering shaped the panel's activity throughout the investigation and even altered the content of the final report."

In the end, the Rockefeller Commission did not do what Ford and Cheney had hoped. For they did a good job, and when Ford tried to suppress their report, public and Congressional outrage forced its release. Rather than make the issues disappear, the entire drill only focused more attention on those issues.

Congress and the news media saw through the façade. As a result Congress launched two highly aggressive investigations: the Pike committee in the House of Representatives, chaired by Congressman Otis Pike (D. -TX), and the Church committee in the Senate, chaired by Senator Frank Church (D. - ID).

It's High Time For An Independent Commission to Investigate Iraq and WMD

The Bush Commission, too, may ultimately backfire. But it may have been stacked even more heavily and effectively than the Rockefeller Commission; Cheney appears to have learned from that mistake.

In any case, Bush and Cheney need only get beyond November 2, 2004. (If the Commission backfires in a later year, that will not be as important, especially as the nation may have moved on to other issues by then.) It appears they will succeed.

They have preempted the Congress successfully by appointing a commission with little expertise in intelligence matters that will not report until after the election. They have mandated the commission to do everything but what was being demanded -- namely, that it examine the role of the Bush administration in dealing with the intelligence that was collected, then exaggerated and manipulated.

They have loaded the commission with work unrelated to the reasons the public (and Congress) sought the inquiry. Finally, they have created a study that will be reported only to the president (and vice president), so unless Bush decides to disclose its work, no one will ever know what was, or was not, done by this commission.

Bush should be given an honorary membership in the International Brotherhood of Magicians for his latest political handiwork.

John W. Dean, a FindLaw columnist, is a former counsel to the President.